Motion to dismiss charges denied - Beloit Daily News: News

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Motion to dismiss charges denied

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Posted: Wednesday, August 1, 2007 12:00 am

JANESVILLE - A Rock County Circuit Court judge denied motions to dismiss charges and suppress evidence Tuesday in the case of a man accused of killing a Beloit man in April.

Byron Stewart, 36, of Beloit, is charged with party to the crime of first degree intentional homicide in the shooting death of Carlos Lak, 35, of Beloit, on April 2. His attorneys filed motions to dismiss the criminal complaint based on lack of evidence, dismiss charges based on insufficient evidence, and motions to suppress evidence seized from Stewart's car and person based on lack of probable cause for the search warrant.

Stewart's attorney, Walter H. Isaacson, argued the description of the mint green Bonneville, which police say Stewart drove away in when fleeing from the homicide scene, did not stay consistent. Also police officers responding were only told two black males were in the area, which isn't enough detail to lead to Stewart. He argued the .357 revolver found near Stewart's vehicle at Dewey and Henry avenues was not directly linked to Stewart.

Rock County Assistant District Attorney Richard Sullivan said all the state needs is probable cause to conduct search warrants and charge someone.

A description of Stewart's vehicle was given moments after the shots fired report came in, Sullivan said. As Stewart drove on Henry Avenue toward Dewey a police car was behind him. He ran through a red light at Henry and Riverside Drive, Sullivan added.

&#8220Evidence of fleeing is evidence of guilt,” he said.

The gun, which ballistics confirmed was used to shoot Lak, was linked to a friend of Stewart's.

The shooting occurred in Lak's apartment at 1246 Eighth St., Beloit. Stewart and Conner left the scene as officers were responding to the call of shots fired. Stewart ended up crashing into a tree at Dewey and Henry avenues. The other man charged in the homicide, Thomas C. Conner, 36, of Beloit, was injured by the crash. Nevertheless, Stewart managed to run into a house in the 1700 block of Wisconsin Avenue.

In denying the defense's first two motions, Rock County Circuit Court Judge Daniel T. Dillon, explained there are some unique aspects to the probable cause in this case.

&#8220You don't see many mint green cars and you don't see many mint green Bonnevilles,” he explained.

The second motion to dismiss charges based on insufficient evidence, was filed because the primary evidence linking Stewart to the shooting are statements made by Conner at Beloit Memorial Hospital to his parents, which Beloit Police Detective John Fahrney overheard and revealed at Stewart's preliminary hearing.

According to Fahrney, Conner told his parents they went to Lak's apartment to purchase a quarter ounce of powder cocaine. Lak said he didn't have any. Stewart demanded the cocaine or the money. When he didn't get either he took out a gun and hit Lak in the face. Stewart then allegedly shot Lak twice in the head, then put a pillow over his face and shot him again.

Fahrney said Conner told his parents he didn't know Stewart was armed.

Isaacson argued Conner made those statements to his parents to protect himself.

Sullivan countered that Conner made himself criminally liable with his statements, because he admitted to his parents they had gone to Lak's house to purchase cocaine and watched as Stewart allegedly hit and shot Lak. Conner then willingly left with Stewart.

Dillon said the Conner statement is clearly hearsay, but is being appropriately used by the prosecution. Use of this statement during the trial is a whole other matter, he said.

The defense plans to appeal the motion to dismiss charges based on insufficient evidence.

Stewart's homicide trial in Rock County is set for Dec. 17.

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